Teenage Sexuality Online: Should Adolescent ‘Sexters’ be Criminalized as Child Pornographers?

Introduction

With the rapid advancement of technology, more and more American teens are spending their time online. Research shows that the online world has become an extension of the real world for most youth, with at least 6 in 10 teens reporting that they spend time with their friends online every day or almost every day.[i] As in the real world, these teenagers are commonly exploring their sexuality and sexual identity online. A 2018 study published in the Journal of the American Medical Association (JAMA) found that 14.8% of American youth reported sending "sexts," while approximately 27.4% said they had received them.[ii] As the internet, mobile phones, and social media proliferate, sexting or "sexual texting," defined as "sharing of sexually explicit images, videos, or messages through electronic means[iii],” is on the rise. The prevalence of sexting among youth is growing so quickly that a recent study found that the act is “increasingly common in practice” and increases in prevalence for each year of age until the age of 18.[iv] As a result, it is no surprise that there have been a handful of recent cases on the legality of adolescents creating and distributing sexual content, specifically of themselves.

Much like physical acts of sex, laws regarding sexting among teenagers and the creation of sexual content vary widely from state to state. According to the Cyberbullying Research Center, seven states (Alabama, Florida, Georgia, Kansas, Nebraska, Utah, and Washington) have felony provisions on sexting, and 25 states have laws that directly address minors sending sexts.[v] However, arrests related to teenage-to-teenage sexting tend to be minimal—a study from 2012 found that only 18% of “experimental” youth-only sexting cases with no aggravating elements in the United States result in an arrest. Most cases brought to court regarding sexting are typically done so under child pornography laws.

These cases have had disparate outcomes. Some courts have opted to throw the charges of child pornography out altogether on the stance that the statutes were created to protect child victims rather than criminalize them[vi], while others have interpreted child pornography laws broadly and harshly[1]Claiming that prosecuting adolescent offenders is in their best interest. As a result, there is no clear standard regarding whether teenagers sexters should be criminalized as sexual predators or child pornographers.

Through an analysis of select relevant cases, I will argue that minors who produce and send sexual photographs or videos of themselves online in a consensual manner should not be prosecuted as sex offenders or child pornographers. Doing so violates their right to privacy and criminalizes normal adolescent exploration of sexuality that is not otherwise criminalized. Moreover, the statutes under which they are prosecuted were created to protect, not punish, children from exploitation or abuse. Therefore these juvenile individuals cannot be both an abuser and victim of the same crime.

Laws Governing Sexually Explicit Content of Minors

18 U.S.C. § 2251 states that “any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in or has a minor assist any other person to engage in … any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction for such conduct, shall be punished…”[vii] A reasonable person should interpret the use of the specific action verbs "employs, uses, persuades, induces, entices, or coerces" to interpret whom this law applies. Individuals do not typically employ, use, persuade, induce, entice, or coerce themselves into doing things—they do them. These words should be understood to criminalize actions that are done to another person, namely a minor. No language in this statute implies that a victim and perpetrator can be the same person.

Furthermore, according to 18 U.S.C. § 1466A, it is illegal for “any person who … knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture or painting that (a) depicts a minor engaging in sexually explicit conduct; and (b) is obscene. Under the standard federal practice, something is considered obscene if it meets the three-pronged Miller test:

1.     An average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests;

2.     An average person, applying contemporary adult community standards, finds that the matter depicts or describes sexual conduct in a patently offensive way; and

3.     A reasonable person finds that the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.[viii]

It is important to note that the stipulations under the Miller test regarding obscenity explicitly state, “applying contemporary adult community standard,” which implies that the test applies specifically to individuals in the adult community, not minors, as we do not typically expect children to understand adult standards fully.   

Relevant Cases

“Sexting Panic: Rethinking Criminalization, Privacy, and Consent,” author Amy Hasinoff argues that sexting is merely an extension of the sexual exploration that teenagers are already experiencing in their offline lives.[ix]I believe this is a reasonable interpretation and look at how past courts have handled other instances of normal adolescent exploration of sexual identity and relationships.

In the 1995 case, B.B. v. the State of Florida, a 16-year-old minor was charged with unlawful carnal intercourse with a minor in violation of Fla. Stat. Ann. § 794.05 after having consensual sex with another 16-year-old minor.[2] The petitioner appealed this decision, and the Florida Supreme Court overturned the conviction, finding that "a statute prohibiting sex with a minor violates the state constitution's privacy provisions as applied to the petitioner, because the purpose of the statute was to protect minors from the sexual acts of adults, and a minor could not be prosecuted under it." Nearly a decade later, in A.H. v. the State of Florida, a 16-year-old minor and her 17-year-old boyfriend were charged as juveniles under the state's child pornography laws. These charges were based on digital photographs that the couple took and never shared with a third party. The court ruled that there was a compelling state interest in preventing the pictures' production and that criminal prosecution was the "least intrusive means of furthering the State's compelling interest."[3] This decision is in direct conflict with the earlier decision in B.B. v. State, with the dissenting opinion stating, “[The law] was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to conduct at issue violates the child’s right to privacy… In the process, the court has rendered a decision that expressly and directly conflicts with the decision of the Florida Supreme Court in B.B. on the same point of law.”

If the goal of criminalizing teenage sexting is to protect adolescents from harming themselves, there are other means of accomplishing this goal. Therefore, the state of Florida is wrong in asserting that criminal prosecution was the least intrusive way of preventing the production of photographs. One way to protect teenagers or deter them would be to proactively educate them as part of regular sexual health education regarding the risks of sexting. Suppose the dangers of teenage sexuality are changing with the advent of new technologies. In that case, the first avenue to adapt to such changes should be to update existing risk prevention methods. Another way to accomplish this protection goal would be for policymakers to incentivize or compel private companies to create technology that physically prevents creating such content. With the growing sophistication of facial recognition technology, including technology that can detect a user's age based on specific facial features, there is undoubtedly potential for innovation in this space. Since sexual depictions of adolescents are not protected by the first amendment, there should be little concern from private companies regarding them violating individual rights.[x]

Prosecuting teenagers for exploring their sexuality and forcing them to register as sex offenders, as a result, does more harm than good. Furthermore, it is difficult to establish what harm is being created by producing these sexual images and videos when the subject is the one creating them. It does not make sense to prosecute individuals for a crime against themselves, even if it is in their best interest. In these instances, the role of the court is not to establish that there was harm done against an individual by themselves but rather that there was harm done by someone else. Much like other prohibited sexual behaviors that have since been determined as “victimless crimes,” the advent of consensual teenage sexting may be a social, moral issue, but it is not a criminal one.

Conclusion

The exploration of sexuality is a natural and expected phenomenon among teenagers, and sexting is merely an extension of adolescent offline behavior.[xi] While the internet has created new avenues for navigating such exploration, it has not made a wholly new imperative that must be criminalized. In the same way that we do not criminalize consensual sexual relations between two consenting teenagers in the physical world, we should not in the digital. However, it must be noted that this should only apply to sexual acts that are consensual between two teenagers of the same ability and understanding and specifically in instances where an individual produces content of themselves and no other parties. Cases, where adults, individuals who cannot reasonably consent, or minors other than the self are involved, are outside this argument's scope.

Teenagers should be allowed to grow and learn from their actions, including the repercussions of sharing intimate images or videos with others they presume to trust, without the fear of being labeled a sex offender or felon. To criminalize these actions would cause more harm than prevent, as they do not fit within the scope of protecting children and adolescents from exploitation. To prosecute teenage sexters as both the victim and abuser fails to accomplish the very goal the law seeks to achieve: protecting victims. While some courts have argued that they must safeguard teenagers from themselves, it is hard to find other non-digital cases that support this action within the law's scope. We do not protect teenagers from themselves in cases of other behavior that is deemed risky or socially unacceptable, and we should not start now. These statutes must be amended to state that a "person" perpetrator and "minor" victim cannot be the same person.

[1] A.H. v. State, 949 So. 2d 234, 2007 Fla. App. LEXIS 484, 32 Fla. L. Weekly D 243 (Court of Appeal of Florida, First District January 19, 2007, Opinion Filed). https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4MVN-S4S0-0039-42TW-00000-00&context=1516831. 

[2] B.B. v. State, 659 So. 2d 256, 1995 Fla. LEXIS 1063 (Supreme Court of Florida June 29, 1995, Decided). https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3RX4-1CD0-003F-30M5-00000-00&context=1516831.

[3] A.H. v. State, 949 So. 2d 234, 2007 Fla. App. LEXIS 484, 32 Fla. L. Weekly D 243 (Court of Appeal of Florida, First District January 19, 2007, Opinion Filed). https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:4MVN-S4S0-0039-42TW-00000-00&context=1516831.

[i] Monica Anderson & Jingjing Jiang, Teens’ Social Media Habits and Experiences (2018), https://www.pewresearch.org/internet/2018/11/28/teens-friendships-and-online-groups/.

[ii] Sheri Madigan et al., Prevalence of Multiple Forms of Sexting Behavior Among Youth: A Systematic Review and Meta-analysis, 172 JAMA Pediatrics 327–335 (2018).

[iii] Id.

[iv] Jeff R. Temple et al., Teen Sexting and Its Association With Sexual Behaviors, 166 Archives of Pediatrics & Adolescent Medicine 828–833 (2012).

[v] Sexting Laws Across America, , Cyberbullying Research Center , https://cyberbullying.org/sexting-laws (last visited Feb 23, 2021).

[vi] Victory! Judge Dismisses Charges in Minnesota Teen Sexting Case, , ACLU of Minnesota (2018), https://www.aclu-mn.org/en/press-releases/victory-judge-dismisses-charges-minnesota-teen-sexting-case (last visited Feb 23, 2021).

[vii] Child pornography is defined as any visual depiction of sexually explicit conduct involving someone under 18. Visual depictions include photographs, videos, digital or computer-generated images indistinguishable from an actual minor, and images created, adapted, or modified but appear to depict an identifiable, actual minor. Undeveloped film, undeveloped videotape, and electronically stored data that can be converted into a visual image of child pornography are also deemed illegal visual depictions under federal law. Citizen’s Guide To U.S. Federal Law On Child Pornography, (2015), https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography (last visited Feb 23, 2021).

[viii] Id.

[ix] Amy Adele Hasinoff, Sexting Panic : Rethinking Criminalization, Privacy, and Consent (2015), https://ezproxy.cul.columbia.edu/login?qurl=https%3a%2f%2fsearch.ebscohost.com%2flogin.aspx%3fdirect%3dtrue%26db%3de025xna%26AN%3d961037%26site%3dehost-live%26scope%3dsite.

[x] Citizen’s Guide To U.S. Federal Law On Child Pornography, supra note 7.

[xi] Amy Adele Hasinoff, supra note 9.